Gender-Critical Views Protected Under The Equality Act

• Published date: 26 July 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: Winckworth Sherwood
• Author: Ms Andrea London and Eleanor Jefferies

Earlier this month, the Employment Appeal Tribunal ("EAT") concluded, in the high-profile case of Forstater v CGD Europe & Ors, that gender-critical views, namely that sex is immutable is a protected philosophical belief under the Equality Act 2010.

Background

In 2018, the appellant in this case, Ms Forstater, began posting tweets that expressed her beliefs about gender identity issues as well as her opposition to legal reforms that would permit gender self-identification. While engaging in debates on social media, Ms Forstater made comments which some found offensive and transphobic. Some of those individuals were her colleagues at CGD, who subsequently lodged complaints about her regarding the matter. As a result, Ms Forstater's contract with CGD was not renewed and she subsequently made a claim to the Employment Tribunal on the basis that she had been discriminated against on the grounds of belief.

At the preliminary hearing in November 2019, the Employment Tribunal found that Ms Forstater's core belief - which was that sex is immutable, whatever a person's stated gender identity or expression, did not qualify as a philosophical belief which was capable of protection under s.10 of the Equality Act 2010 and indeed was "absolutist in nature" and necessarily involved violating the dignity of others and was "not worthy of respect in a democratic society".

Ms Forstater appealed to the EAT.

The EAT decision

Led by the President of the EAT, Mr Justice Choudhury, the EAT panel disagreed with the Employment Tribunal, finding that:

• it had incorrectly applied the fifth criterion set down in Grainger plc v Nicholson [2010] ICR 360, which the EAT considered operated only to exclude from protection under the Equality Act views akin to Nazism and totalitarianism. The EAT found that Ms Forstater's belief "did not get anywhere near to approaching" the kind of belief that would seek to destroy the rights of transgender persons, and that such beliefs were also widely held.
• The Employment...